MPRDA regulations widen the obligation to consult

New amendments to regulations to the Mineral and Petroleum Resources Development Act (MPRDA) take the requirement for mines to consult on their environmental impacts and Social and Labour Plans one step further, to “meaningful” consultation. The amendments also introduce the long-awaited alignment with the One Environmental System and new details on the appeals process.

The Minister of Mineral Resources and Energy on 27 March 2020 effected amendments to the Mineral and Petroleum Resources Development Act, 28 of 2002 Regulations GNR.527 of 23 April 2004.

The amendments to the regulations relate to: (i) the requirements of meaningful consultation with landowners, lawful occupiers and interested and affected persons; (ii) the requirements of meaningful consultation with mine communities and interested and affected persons in respect of Social and Labour Plans and amendments to the Social and Labour Plan; and (iii) the Appeal procedure.

CHAPTER 2: PART 1 - MINERAL AND PETROLEUM REGULATIONS

The amendments to the definitions and chapter 2 clearly show that what is required is "meaningful" consultation and not merely consultation. The amendments to chapter 2 provide greater detail on what is required by "meaningful consultation" and introduce new obligations on the applicant to consult meaningfully. The amendments also introduce an option for the Regional Manager to participate in the meaningful consultation process.

The following new regulations were added in respect of the obligation on the part of the applicant to consult meaningfully:

  1. The meaningful consultation with landowners, lawful occupiers and interested and affected persons shall be conducted in terms of the public participation process in the Environmental Impact Assessment Regulations promulgated in terms of section 24(5) of the National Environmental Management Act, 1998.
  2. The office of the Regional Manager may participate in the meaningful consultation process by the applicant as an observer, to ensure that the consultation by the applicant is meaningful and in accordance with the Regulations.

The amendments also include an explanation of "meaningful consultation" to mean consulting in good faith, in a way which gives the landowner, lawful occupier and/or interested and affected persons all the relevant information and sufficient time and opportunity to make an informed decision regarding the impact of the proposed activities.

The definition of "interested and affected persons" now also includes a non-exhaustive list of potential interested and affected persons, which includes: mine communities, landowners, traditional councils, land claimants, lawful land occupiers, holders of informal rights, the department responsible for Agriculture, Land Reform and Rural Development, the department responsible for Co-operative Governance and Traditional Affairs, the department responsible for Human Settlement, Water and Sanitation, any other person, the local municipality, civil society and the relevant government departments, agencies and institutions responsible for the various aspects of the environment and for infrastructure which may be affected by the proposed project.

CHAPTER 2: PART 2 - SOCIAL AND LABOUR PLANS

The amendments to the regulations relating to Social and Labour Plans provides clarity in terms of the meaningful consultation process required in respect of the contents of the Social and Labour Plan. The consultation process is also more onerous, since it extends beyond an initial consultation to include a minimum of three further consultations to provide updates to the stakeholders on the progress of implementation of the approved Social and Labour Plan and further meaningful consultation upon any amendments to the Social and Labour Plan.


The following new regulations are added:

  1. The applicant must, within 180 days from the date of receiving the notification of acceptance, consult meaningfully with the mine communities and interested and affected persons on the contents of the Social and Labour Plan to ensure that it addresses relevant needs and is aligned with the updated Integrated Development Plan.
  2. The meaningful consultation process on the contents of the Social and Labour Plan shall be conducted in terms of the public participation process prescribed in the Environmental Impact Assessment Regulations promulgated in terms of section 24(5) of the National Environmental Management Act, 1998.

Regulations 43, 44 and 45 are amended to refer to an "approved" Social and Labour Plan and further note that the Social and Labour Plan is subject to the periodic five-year reviews. Regulation 45 is expanded to provide that the mining right holder must convene a minimum of three meetings annually with the mine communities and interested and affected persons.

The following new obligations on the mining right holder introduced in the regulations were not previously provided for:

  1. Publication of an approved Social and Labour Plan
    1. A mining right holder is now obliged to publish the approved Social and Labour Plan in English and one other dominant official language and the approved Social and Labour Plan must be published within 30 days of approval in the manner specified in the Regulations.

  2. Review of a Social and Labour Plan
    1. An approved Social and Labour Plan must be reviewed every five years from the date of such approval. The new regulations also include several factors which the Minister must take into account when reviewing the Social and Labour Plan.

  3. Collaboration on the Social and Labour Plan
    1. The new regulations require that collaboration on approved Social and Labour Plan projects must be transparent, inclusive and based on meaningful consultation with mine communities and affected persons and can only be amended with the consent of the Minister.

The amendments also include an explanation of "mine communities" to mean communities where mining takes place, major labour-sending areas, and adjacent communities within a local municipality, metropolitan municipality or district municipality

ENVIRONMENTAL AMENDMENTS

The amendments also introduce the following key environmental-related amendments which are intended to clean up the regulations as a result of the One Environmental System. These amendments are long overdue:

  • Repeal / exclusion of environmental management aspects - but for issues related to closure, the Amendment Notice repeals all aspects relating to environmental management, which are now regulated in terms of the National Environmental Management Act, 1998 ("NEMA") i.e. the Amendment Notice repeals entirely the old EMP/EMPR provisions;
  • Principles for mine closure  - the risks pertaining to environmental impacts, residual and latent environmental impacts, as well as land rehabilitation activities, must be managed and quantified in accordance with NEMA, the Financial Provision Regulations, 2015 (to be replaced) and the Environmental Impact Assessment Regulations, 2014, throughout the life of an operation.  We note, however, that the Financial Provision Regulations, 2015 have been specifically amended to say that any right or permit holder (if applied for prior to 20 November 2015), must continue to calculate financial provisioning under the MPRDA regime until 19 June 2021.  Therefore, despite the repeal of these provisions under the MPRDA Regulations, they continue to be in force in accordance with the provisions of the Interpretation Act;
  • Application for closure certificate - an application for a closure certificate must be accompanied by a final performance assessment report, compiled in terms of the EIA Regulations, amongst other prescribed documents;
  • Transfer of environmental liabilities - this aspect has been amended to indicate that the Minister may transfer liabilities and responsibilities to a qualified person, as defined in the environmental authorisation, as opposed to an EMP/EMPR, as previously required; and
  • Closure objectives / plan - Similarly, closure objectives and closure plans must be included in an environmental authorisation as identified, in accordance with NEMA and the EIA Regulations. 

CHAPTER 3 - APPEALS

A new Regulation 74 has also been provided. The new regulations provide greater detail on the procedures relating to the appeal process. The new Regulation 74 makes changes, inter alia, as follows:

  1. The notice of appeal must be submitted within 30 days of the date when the applicant becomes aware of the decision. This amendment excludes the previous requirement that the appeal must be submitted "when the applicant should reasonably have become aware" of it;
  2. It provides timelines within which the Regional Manager must take actions and provides a longer period (i.e. 30 days) within which third parties may submit an answering affidavit. Previously there were no time periods for all actions within which the Regional Manager had to make decisions and answering affidavits were required to be submitted within 21 days;
  3. The notice of appeal must include additional information to that previously required, which includes a list of affected persons and supporting documentation referred to in the affidavit;
  4. The following new rights which were not previously allowed for, are now included:
    1. the appellant has an opportunity to submit an amended notice of appeal;
    2. the Minister will use his/her best endeavours to arrange with the Minister of Environment, Forestry and Fisheries if appeals are received in terms of section 96(1) of the Act and in terms of section 43(1A) of the National Environmental Management Act, 1998 so that both Ministers can co-ordinate the finalisation of both appeals; and
    3. service of documents in terms of this Regulation may be effected by way of electronic transmission.

For the full Gazette Notice, please click here.